About last week… (and some actual content too)

So, I didn’t manage to post last week and this is something of an apology to those of you loyal readers who kept coming to the site last week each day looking for content.  (Rest assured, there’s also some substantive discussion of a live ethics issue in the post as well.)

I don’t have any real great excuse as there is always work, sometimes travel, and other commitments to overcome to keep this blog going, but the only new piece of the puzzle last week that played a role in my failure to come through was my 44th birthday last Tuesday.

It was a weird one as thinking about it caught me up and resulted in more melancholy than joy.  Thinking about it statistically, 44 signaled that was likely through 2/3 of my life and only had 1/3 to go.  In that context, and I’m certain likely many others in the legal profession, I kept ruminating on my belief that I haven’t been as successful professionally as I would have hoped I’d be at this stage of my life.  I know this sounds like one of those Facebook posts from people pursuing an indirect “woe is me” cry for attention but it isn’t meant that way at all, just an explanation for last week’s radio silence.

Speaking of Facebook, Florida continues to dedicate far too may judicial resources to the resolution of a question that — if you set technology aside ought to be easily answerable — can judges and lawyers be “friends” on Facebook.

Karen Rubin over at The Law For Lawyers Today provided a good run down last week of the history of the Florida case, so I won’t retread that ground and instead am going to take the opportunity to repeat (though I don’t believe I’ve ever stated them here on my blog) my views on the absurdity of the underlying “debate” about the issue.

Judges are human beings.  Human beings, even awful ones, are still going to manage to have a few friends.  The judicial ethics rules do not prohibit judges from having friends who are lawyers.  Thus, there is no rational way the judicial ethics rules can be said to prohibit judges from being friends with lawyers on Facebook.  The judicial ethics rules do contemplate that a friendship between a judge and a lawyer can, if close enough, result in a judge needing to recuse herself from a case involving the lawyer.  Thus, whether a judge and a lawyer are friends on Facebook should simply be one factor in evaluating whether the nature of the friendship is close enough that the judge needs to recuse.  Actual real-world interactions between the lawyer and the judge though should be a more important factor.  The analysis of this issue in any jurisdiction, including Florida, should be as simple as that.

In fact, I believe that judges using Facebook and being friends with lawyers actually does the public a service because it provides litigants and their counsel with a level of transparency they might not otherwise obtain to evaluate whether a judge has a real-world friendship with a lawyer that merits the bringing of a motion to disqualify the judge.  On Facebook, even if a judge has all of her privacy settings as locked down as possible, you can still view a list of the judge’s friends.  Armed with that information, a litigant or a lawyer can then raise the issue and may come to learn of a true, deep friendship between lawyer and judge that might not have otherwise been discovered.

An inside-baseball view of judicial ethics and the media

For today, an interesting (at least I think it is interesting) story about a judicial ethics scenario and the ability of media to “shape” a story and how that ability can transform a question of judicial ethics.

About three weeks ago, I spoke with a print reporter with The Nashville Scene about questions he had on a story he was working on about a part-time judge of the General Sessions environmental court in Nashville.  This particular court, among the cases it hears, are ones over using property for purposes of short-term rentals (think Airbnb) without obtaining the required permit to do so.

The reporter’s issue involved the fact that this court would adjudicate the question of whether a property owner was pursuing this endeavor without being properly permitted and that the part-time judge in question owned several properties that were properly permitted.  The reporter was interested in my view on whether this created a disqualifying conflict for the judge under Tennessee’s judicial ethics rules.

We talked for a good bit and, ultimately, I explained my view that — based on my understanding of what the court could (and could not) decide — that the answer was “no, not a disqualifying conflict.

You can read The Nashville Scene story, which contains a fair representation of what I had to say, here.  A few days later, as the public attention on this story continued to grow, I got a call from a reporter with a TV station in Nashville who wanted to know if I’d be willing to do an on-camera interview for a story they were doing on this situation.  He said he saw The Nashville Scene story, knew my view, and wanted me to elaborate on that for the story they were doing.

We worked out a set-up so that we could do a Skype-video interview for his use and managed to talk on camera for maybe 15 minutes or so.  And I again laid out these points in significant detail about why, in my view, this simply wasn’t a conflict.  (I’m biased, but I recall giving a really good explanation of how different the scenario would be if this particular court had the power to hear challenges to the permitting system itself on constitutional or other grounds, for example.)

Cut to the story that actually aired, which you can watch here.  I’m not in it.  Normally, I’m extremely cool with situations, even where I’ve given of my time to a media outlet, where I end up on the cutting room floor.  That’s just life.  But, when you know in advance what I am going to say and I go out of my way to make things happen on your time frame, it is a little more personally frustrating.  But, I swear, I’m not writing this to vent my personal frustration or make this about me.

Instead, the reason I think any of this is interesting at all is the impact that the kind of one-sided TV segment had on what happened next… which is that the judge in question ended up resigning the position citing the fact not that there was originally a disqualifying conflict but because:

“because I believe that the public has an absolute right to feel that their court system is fair and impartial and that recent misleading media reports could call the Court’s fairness into question.”

Now, was that all there was to the story?  No.  I’ve now come to learn in the process of writing about this that there was an intervening news story regarding whether or not the judge was also violating a provision of the ordinance his court was enforcing.  You can watch a story about that here.  I’ll admit I haven’t even tried to dive deep enough into an understanding of the ordinance involved to know whether that is the equivalent of a traffic court judge who happens to get caught speeding or something more serious.  Also, my opinion is, of course, only my opinion and is not dispositive of what the right answer to the question should have been… but as a “participant” in this process, I thought it would still make for an interesting word to the wise about how stories on ethical questions can manage to be “framed” for public consumption in ways that ultimately can heavily impact the outcome.

Friday follow up – Sixth Circuit affirms Kentucky judicial speech case

So, I’ve been battling a bit of a stomach bug such that over the last 45 hours or so I have ingested a cup of yogurt, a sleeve of Ritz crackers, and a small bowl of chicken noodle soup.  Accordingly, this will be a short(ish) post – apologies in advance.

Back in May of this year, I wrote a bit about judicial elections and First Amendment speech issues that continue to be litigated in the context of judicial ethics rules that seek to restrict what judges can say when campaigning for public office.  I spoke about a federal court decision out of Kentucky that was the most recent instance of a federal court striking down certain kinds of provisions and that it appeared to be among the first cases to interpret an important U.S. Supreme Court case from 2015 – Williams-Yulee v. Florida Bar.

Just a little over three months has passed, and the Sixth Circuit now has already issued its ruling in Winter v. Wolnitzek affirming just about every aspect of the Kentucky district court’s decision.  While the Sixth Circuit gives much credit to the district judge for its “thorough and thoughtful opinion,” the Sixth Circuit’s opinion is no slouch in the thoughtfulness category either.

The Sixth Circuit’s opinion affirmed the ruling that, because of how the Kentucky Supreme Court interpreted the provision, the “shall not campaign as a member of a political organization” prohibition was vague and constitutionally overbroad — specifically “too vague to tightly regulate the problem and too vague to avoid scaring off permissible electoral speech.”

It also affirmed the ruling that the provision prohibiting judicial candidates from “mak[ing] speeches for or against a political organization or candidate” is unconstitutional because it extends to prevent Kentucky judicial candidates “from announcing their views on disputed legal and political subjects.”  In terms of the (perhaps) most closely-watched aspect of the case in front of it, the Sixth Circuit decided to remand to allow Kentucky an opportunity to clarify whether it will interpret “impartiality” in its “Commits clause” to mean only impartiality as to parties.

You can read all aspects of the opinion at the link provided above, but. if I had to guess, I think the most lasting legacy of this decision and the sentence likely to be quoted the most in the future is:

A State may not hold judicial elections, then prevent candidates from explaining what makes them qualified for that office.

Whether it is a good thing or not for performance of the judiciary as a whole, there are presently (and undoubtedly will be many more in the future) candidates in public judicial elections who believe strongly that part of what makes them qualified for office are their political views. their political allegiances, and the like.

Hyperbole is the worst thing in the world – judicial ethics roundup

Earlier this month, the U.S. Supreme Court issued an important opinion on judicial recusal, Williams v. Pennsylvania.  It is the first instance in which the Court has applied the standard first announced in Caperton — that recusal is required when the risk of actual bias on the part of a judge is “too high to be constitutionally tolerable.”  In Williams, the Court reached the conclusion that due process required recusal of a Pennsylvania Supreme Court Justice in a post-conviction matter where he had been the District Attorney who signed off on pursuit of the death penalty against the prisoner in the underlying murder case.  Both the majority opinion, authored by Justice Kennedy, and at least Justice Thomas’s dissent, which stresses the point that the two cases are not the same case — one being a civil proceeding and the earlier one a completed criminal case, are worth a read.  But, the Williams opinion not the primary issue involving judicial ethics that prompted me to write.

What did is the story of the Florida circuit court judge (in Broward County) who has now accepted a proposed public reprimand and agreed to deliver, in person, a written apology to a prosecutor for his conduct back in 2015.  You can get access to the full charging document filed back in November 2015 against that judge here, and you can read a week-old story from The Sun Sentinel about the acceptance of the discipline here.

The Florida judge’s original misstep involved the sending of an email in March 2015 to one of the lawyers in the Broward County Public Defender’s office that read as follows:

Sam. fyi, see the Palm Beach Judge’s Order re downward departures generally, not regarding any particular cases … and hopefully, you can perfect your own motions for downward departure (when you believe appropriate) using the excellent research you’ve already begin [sic], and perhaps some of this Judge’s Order and perhaps the cases she relied upon as well, but in either case, maybe there is something of interest (generally) below.

That email also forwarded to that public defender an email the judge had sent about 30 minutes or so earlier to his staff attorney about how to use that order as a template for orders in this judge’s cases.  The receiving public defender then shared the email with other attorneys in that office and one of them recognized that the contents also needed to be shared with the prosecutors.

That led to the filing of a motion by prosecutors seeking a blanket recusal of the judge based in part on “favoritism” shown to the defense lawyer who received the email.  The judge then compounded his situation with the way he handled a couple of subsequent matters that were stayed as a result of the list of cases for which recusal was being sought.  He managed to call the prosecutors who compiled the list “idiots,” and saying that the premise of the whole underlying mess was “a lie from the pit of hell.”  Poker players might refer to that kind of lashing out as a “tell” on the part of the accused judge.

Interestingly, the Florida judge wrapped into one proceeding both kinds of judicial violations that have separately been the subject of two of the most recent instances of public judicial discipline in Tennessee.

I wrote many moons ago about an unusual circumstance where the Tennessee Association of Criminal Defense Lawyers as a group had filed an ethics complaint against a Nashville General Sessions Judge for an ex parte email communication to members of the local district attorney’s office about certain rules the judge would have in terms of plea agreements that simply would not be accepted.  That judge ended up receiving a public reprimand for her conduct in March 2016, which you can read in full here.

More recently, a Juvenile Court judge in Murfreesboro, Tennessee (a college town not too far from Nashville) received a public reprimand for her conduct in making vituperative remarks directed at parties/attorneys in a hearing involving a motion to transfer.  While not rising to quite the same level as the Florida judge’s rhetoric, the Murfreesboro judge did call the folks seeking to transfer a case out of her court as a “sneaky snake,” and as being “conniving.”  You can read the public reprimand letter issued to that judge here.

Given that both Tennessee judges received public reprimands just for conduct involving one thing or the other, it seems the Florida circuit judge ought to be somewhat grateful that he got out of his jam involving both ex parte communications and rash invective from the bench without receiving a suspension.

A word about B**chslaps

It’s a stupid and demeaning term.  In both contexts, whether you replace the asterisks with the original two letters, it, or the other two letters, en.  It is unfortunate that the second term was ever coined by this guy, and it is remarkable to think that this guy has included it for many years as a recognized and defined term in Black’s Law Dictionary.

My opinions on that front are what they are, and the reality is what it is.  As the once-prominent fictional lawyer Richard Fish would say, “Bygones.”

An associate professor at the Washburn School of Law has an article out, for now just available through SSRN, that you can read here.  It is an interesting read.  To me, the most interesting part of it was how I managed to agree pretty much completely with the central premise — judges should not issue opinions that include language that is designed to try to remedy a lawyer’s behavior (or deter other lawyers from engaging in the same behavior) through belittlement and, simultaneously, disagree with so much of the article itself.

Absolutely, judges should see the act of engaging in a “b**chslap” as beneath her/him, and it ought to be something that our profession, the loam from which judges grow, discourages for lots of different reasons.  The simplest basis for doing so would be the general principle I keep coming back to like something of a broken record . . . don’t be an ass.  Another pretty good concept from which to work to vigorously argue against the prevalance of the issuance of such rulings is an often articulated rule of satire…. always punch up, never punch down.

But, the article.  So many things with which to beg to differ.  Bullying?  Or even workplace bullying?  I get the instinct — frankly even the rule of satire I just reference speaks in terms of “punching down” as being an act of bullying — but, for some reason (n.b. it is probably fn. 1’s slightly over-the-top dedication of the piece “to all those who suffered under the thumb of a schoolyard or workplace bully”), the author’s decision to frame that as the issue in this article leaves me feeling like it diminishes the importance of the bullying topic in modern life.  Plus, if an author were truly insistent on taking that tack, then it is tough to justify deciding not to scrutinize the judge v. judge instances that are briefly discussed at page 11 and fn. 59 and then promptly cast aside.  Those instances, particularly in the context of reviewing courts, are (if anything in this arena is) actual workplace bullying.

As to the underlying questions of judicial ethics, I certainly agree that many of the examples referenced in the article raise serious questions of violations of provisions similar to Rule 2.8(b) of the ABA Model Code of Judicial Conduct.  Nonetheless, as to the notion that two new comments are needed to somehow empower judicial disciplinary authorities to take action, I again beg to differ.   The necessary judicial ethics provision is already there to remedy judicial conduct that crosses the line.  Adding explanatory comments won’t necessarily help things because, if there is a problem of enforcement flowing from the existing rules, it would seem to me to be a reluctance to use that provision because of the significant void-for-vagueness constitutional issue that also plagues those who would seek to make “professionalism” a discipline issue for lawyers.

I also disagree with the stated idea that taking the lawyer to task in a public opinion cannot be “other appropriate action” consistent with Rule 2.15 and the implied, if not actually stated, assertion that a judge should pursue such a communication about disappointment with a lawyer’s behavior through a private channel.

The author should acknowledge that any truly private communication from unhappy judge to poorly-performing lawyer while the case was ongoing would raise real ethical concerns for both parties over rules restricting ex parte communications between judges and lawyers.  Thus, presumably, the author would anticipate the court having to wait until the matter is concluded to reach out to the lawyer involved to privately chide them, but the timing of that would leave much to be desired in terms of likely effectiveness.  Although Rule 2.9 of the ABA Model Code permits otherwise prohibited ex parte communications when expressly authorized by law, the language of Rule 2.8 seems a far cry from providing clear cover for a private one-on-one chat session.

In fact, if there were to be any tinkering with the judicial code of ethics to address public belittling, I’d posit that undertaking to make crystal clear that rather than excoriate a lawyer in a published opinion for misconduct which the judge does not believes rises to the level of a required disciplinary report, the other appropriate action that the judge could take would include a truly private discussion with counsel notwithstanding the bar on ex parte communications under Rule 2.9.

I also am unconvinced by the author’s conclusion that judicial ethics rules must be insufficient because judges don’t seem to be punished for such writings.  Or, to quote from the author, “the current system of judicial ethical enforcement has proved either unwilling or unable to address the propriety of judges issuing benchslaps.”  The author appears to be  glossing over the fact that, disciplinary entities, for the most part are not in the business of commencing their own cases and instead react to the filing of complaints about judicial misconduct.  That can be one very likely reason  — no one ever complained to the appropriate authority — that none of the prominent examples the author focuses on in his article resulted in any punishment.

And, I’m going to presume the author is correct about that, as I don’t know (and suspect the author does not know either) whether any of those judges may well have received private discipline.  Another reason can be that where that line is, and when it has been crossed, is very much in the eye of the beholder.  One of the examples that the author uses of how a court can appropriately address something in a written opinion without turning into something that is a b**chslap is In re S.C., 138 Cal. App. 4th 396 (2006).  Yet, if you go back and reread the opening lines of that decision the author quotes from, and imagine the decision being issued in 2016 and not 2006, I suspect it too would get prominent attention at Above The Law as an example of the genre.

Finally, I fundamentally disagree with the idea that making it easier for lawyers to pursue appeal when attacked in this manner is not the answer.  In terms of workable, practical answers, it strikes me as the best, realistic answer.  There needs to be clarity that lawyers do so on their own dime and not at their client’s expense if the client otherwise has no interest in pursuing an appellate remedy, but clearer availability of obtaining appellate review could go a long way toward discouraging the belittling judicial conduct.

The best answer (though probably not at all realistic) would be for media coverage of such instances to adopt the critical tone of Judge Edith Jones’s email quoted in a footnote of the article.  If the judges who are prone to belittle with their rhetoric weren’t celebrated in the media for doing so, then they might be much less inclined to continue to crank out such writings.  In the meantime, perhaps the article and the public discussions of it and attendant publicity of the topic it is generating, will help such judges become more inclined to pursue the better angels of their nature and remove such items during the drafting process after they have had the private, cathartic benefit of having drafted the language in the first place.

TACDL’s judicial disciplinary complaint and what really makes it unusual

The Tennessean has an article today about a disciplinary complaint filed by the Tennessee Association of Criminal Defense Lawyers against a General Sessions judge in Nashville.  (General Sessions court in Tennessee is our small claims court, on the civil side, and on the criminal side of things tends to be a misdemeanor court.)  TACDL says that it is unprecedented for its organization to have done something like this against a sitting judge, and I have no reason to doubt that’s true.  You can read TACDL’s letter submitting the complaint here.  This is a fascinating story, and TACDL does a good job in the complaint in laying out the judicial ethics rules that appear to be implicated.  You can read the source material for more details about the contents of the email communication from the judge to the prosecutors that prompted the complaint, but I’d like to use this as an opportunity to make two points about Tennessee’s ethics rules and when they can actually require a lawyer to file a disciplinary complaint.

First, far too many lawyers who may remember that RPC 8.3(a) requires a lawyer in certain situations to file a complaint about another lawyer forget that our RPC 8.3(b) actually imposes a requirement for lawyers to have to file a disciplinary complaint in some circumstances against a judge.  RPC 8.3(b) imposes that requirement if the lawyer “knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office.”

Second, much more frequently overlooked even than the existence of RPC 8.3(b) is the impact of RPC 8.3(c) and Comment [2] on any such obligation of a lawyer.  Much more frequently overlooked even than the existence of RPC 8.3(b) is the meaning and impact of RPC 8.3(c) and Comment [2].  What makes this TACDL complaint really catch my attention is that the situation that led to this complaint is one of the few in which the exception to mandatory reporting provided by RPC 8.3(c) wouldn’t come into play.

RPC 8.3(c) and Comment [2] work together to explain that if a lawyer would have to disclose RPC 1.6 confidential information in order to make the disciplinary complaint, then the lawyer is not ethically required to do under RPC 8.3(a) or (b).  Because Tennessee’s RPC 1.6, like so many others, makes all information related to the representation of a client confidential, the exception built into RPC 8.3(c) can nearly always be used to swallow the rest of the rule’s requirement for reporting.  Comment [2] does exhort lawyers to “encourage a client to consent to disclosure where prosecution [of the disciplinary complaint] would not substantially prejudice the client’s interests” but the rule does not have any teeth in the event a lawyer decides not to encourage their client to do so.

Most of the time for lawyers, their only knowledge of an ethics offense by a judge (and for that matter of another lawyer) will come about in connection with representing a particular client.  As such, a lawyer trying to decide if they have an ethical obligation to file a complaint will almost always be a situation in which the lawyer would have to disclose some information about the representation of that client to make the report and, thus, can sidestep any ethical obligation to do so if they do not get their client’s consent.

But here the existence of this email sent by the judge appears to have been learned by other lawyers not in connection with representing a particular client but learning about it through media reports.  Thus, while the complaint itself does not say so, this is one of those rare instances in which a strong argument could be made that the lawyers for TACDL who signed off on the making of this complaint could actually be considered to have been ethically required to do so or risk committing their own violation of RPC 8.3(b).  That, more than anything, is what makes the situation truly unusual.